No. 07-400: Moreno-Gonzalez v. United States - Response (Q.1 Hold, Q.2 Denied)

No. 07-400

In the Supreme Court of the United States

ROBERTO MORENO-GONZALEZ, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
ELIZABETH D. COLLERY
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether proof that petitioner conspired to trans port cash proceeds of drug trafficking hidden in cars located on a car hauler destined for Mexico was suf ficient to establish that he conspired to transport money in a manner "designed," at least "in part," to "conceal or disguise" either "the nature, the location, the source, the ownership, or the control" of those proceeds, within the meaning of 18 U.S.C. 1956(a)(2)(B)(i).

2. Whether the requirements of 18 U.S.C. 2518(8)(a) were satisfied when the government used a computer operated system to record intercepted phone conver sations on "magneto optical disks," and then sealed these disks (rather than the computer's hard drive) under the direction of the district court.

3. Whether the district court abused its discretion in admitting expert testimony from a Drug Enforcement Agent on the use of code words by a Mexican drug trafficking organization.

In the Supreme Court of the United States

No. 07-400

ROBERTO MORENO-GONZALEZ, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-21) is reported at 484 F.3d 1311 (11th Cir. 2007).

JURISDICTION

The judgment of the court of appeals was entered on April 19, 2007. A petition for rehearing was denied on June 15, 2007 (Pet. App. 65-66). The petition for a writ of certiorari was filed on September 13, 2007. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted of conspiring to distribute cocaine, meth amphetamine, and marijuana, in violation of 21 U.S.C. 846; possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1); and conspiring to commit money laundering, in viola- tion of 18 U.S.C. 1956(h). He was sentenced to 480 months of imprisonment, to be followed by three years of supervised release. Pet. App. 3-4; Aug. 17, 2005 Dist. Ct. Judgment 2-3. The court of appeals affirmed. Pet. App. 1-21.

1. Petitioner was the United States-based leader of a large drug trafficking organization that imported co caine, methamphetamine, and marijuana from Mexico for distribution in the Atlanta area. Pet. App. 5; Pre sentence Investigation Report (PSR) para. 15, 18. In 2002, the Drug Enforcement Administration (DEA) be gan investigating this organization, and the authorities ultimately intercepted numerous telephone calls pursu ant to Title III wiretaps. Pet. App. 5; PSR 15. Those calls revealed, inter alia, that the conspirators were purchasing tractor-trailers, cars, and trucks, which they were using to transport drugs and money. In particular, on at least two occasions, the organization hid drug pro ceeds in cars placed on car haulers destined for Mexico. Pet. App. 5, 8; Gov't C.A. Br. 17-18, 54-56. The cars were purchased with drug proceeds, and the organiza tion used the names of third parties to conceal owner ship of the cars. Pet. App. 17; PSR para. 26, 28.

In June 2003, the government intercepted telephone calls in which petitioner discussed shipping $1 million into Mexico using a car hauler. PSR para. 26, 28. After the authorities tried unsuccessfully to locate the car hauler, they intercepted telephone calls indicating that the money had reached McAllen, Texas. Gov't C.A. Br. 18 n.21, 55, 57. Two weeks later, an intercepted call re vealed that the organization was again preparing to ship money via the car hauler. This time, law enforcement agents located and stopped the car hauler, and seized $989,203. PSR para. 29.

2. A grand jury in the United States District Court for the Northern District of Georgia indicted petitioner and approximately 29 others. Pet. App. 2. Petitioner was charged with conspiring to distribute cocaine, meth amphetamine, and marijuana, in violation of 21 U.S.C. 846; possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1); and conspiring to commit money laundering, in viola- tion of 18 U.S.C. 1956(h). The money laundering count charged that petitioner conspired to violate 18 U.S.C. 1956(a)(2)(B)(i), which makes it a crime to transport funds to a place outside the United States knowing that the funds represent the proceeds of a specified unlawful activity, and knowing that the transportation was de signed "to conceal or disguise the nature, the location, the source, the ownership, or the control" of the pro ceeds.1 Indictment 2-5 (Counts 1-2), 20-22 (Count 37).

Before trial, a co-defendant moved to suppress the fruits of the Title III electronic surveillance, arguing that the government acted improperly when it sealed a "magneto optical disk" (MOD) rather than the computer hard drive onto which the conversations were first re corded. Pet. App. 59-61. Petitioner adopted that motion (id. at 25-26, 59), which the court referred to a magis trate judge. Relying on the stipulated record of an evi dentiary hearing in another case, the magistrate judge determined that "[t]he Voice Box System [used by the government in this case] converts the incoming analog signals from the telephone conversation into a digital format and records the digital data on the hard drive of a computer. Within a few seconds of the call, a copy of that digital file is automatically written onto a 'magneto optical disk.' * * * The contents of the calls cannot be altered and are not degraded during the transfer from the computer's hard drive to the MOD." Id. at 61 (inter nal citations omitted). The magistrate judge then con cluded (id. at 62) that this procedure satisfied the re quirement in 18 U.S.C. 2518(8)(a) that "[t]he contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter [Chapter 19 of Title 18] shall, if possible, be recorded on tape or wire or other comparable device * * * in such a way as will protect the recording from editing or other alterations." 18 U.S.C. 2518(8)(a).

The magistrate judge rejected the claim that the computer hard drive itself should have been sealed, rea soning that "[b]ecause of the practical difficulties of re moving and using a computer hard drive, and the fact that the incoming data in the Voice Box system is auto matically and electronically put on MODs within seconds of the calls without possibility of alteration, the MODs should be considered duplicate originals." Pet. App. 62. The magistrate judge also noted that Section 2518(8)(a) did not require the sealing of original recordings, and he concluded that the MOD disk satisfied the statutory re quirement that the intercepted communications be re corded on a "tape or wire or other comparable device" in a manner that will prevent alterations. Ibid. After peti tioner failed to file any objections to the magistrate judge's report and recommendations, the district court adopted that report and denied the motion to suppress. Id. at 7-8; Feb. 9, 2005 Dist. Ct. Order.

3. The court of appeals affirmed. Pet. App. 1-21. Petitioner claimed, inter alia, that the evidence was in sufficient to support his money laundering conviction because "nothing about the manner in which the money was packed and transported demonstrated any effort to disguise the nature or source of the money as drug pro ceeds." Pet. C.A. Br. 48. The court of appeals rejected that argument. Pet. App. 16-18. The court concluded that petitioner's scheme to transport drug proceeds in car haulers was designed, at least in part, "to conceal or disguise the nature, the location, the source, the owner ship, or the control of the proceeds," because (1) "hiding the money inside cars on car hauler trailers was an at tempt to conceal the money's association with an illegal enterprise;" (2) "defendants hid the money in the cars to prevent the authorities from finding it;" and (3) "the transportation plan allowed the owner of the money to place it in the hands of a third party, which makes it difficult to determine both the owner and the source of the money." Id. at 18.

As for petitioner's claims that Section 2518(8)(a) re quired sealing of the computer hard disk on which the intercepted conversations were recorded, and that the district court erred in admitting expert testimony on the use of drug codes in the intercepted conversations, the court of appeals affirmed without discussion. Pet. App. 7-8, 15, 21.

DISCUSSION

1. Petitioner contends that his money laundering conspiracy conviction should be reversed because 18 U.S.C. 1956(a)(2)(B)(i) does not criminalize "the mere act of concealing and transporting illicit funds without proof that concealment was for the purposes of creating the appearance of legitimate wealth." Pet. 6. This Court recently granted a writ of certiorari in Cuellar v. United States, No. 06-1456 (Oct. 15, 2007), to consider the mean ing of the term "conceal or disguise" in Section 1956(a)(2)(B)(i). Accordingly, with respect to this ques tion, the petition for a writ of certiorari should be held pending this Court's resolution of Cuellar, and then dis posed of as appropriate in light of the decision in that case.

2. Petitioner contends (Pet. 15-22) that the inter cepted conversations were not properly recorded and sealed in accordance with 18 U.S.C. 2518(8)(a) because the government sealed the MODs rather than the com puter's "original" hard drive. Petitioner does not dis pute that the MODs were an accurate duplicate of the hard drive, and nothing in Section 2518(8)(a) requires that sealed recordings be "originals." Indeed, no court has interpreted the statute to contain such a require ment. Accordingly, petitioner's claim lacks merit and warrants no further review.

a. Section 2518(8)(a) requires that intercepted con versations "shall, if possible, be recorded on tape or wire or other comparable device," and that "[t]he recording * * * shall be done in such a way as will protect the recording from editing or other alterations." These re quirements serve to "ensure the reliability and integrity of evidence obtained by means of electronic surveil lance." United States v. Ojeda Rios, 495 U.S. 257, 263 (1990). The magistrate judge found, and petitioner did not dispute, that the MOD is a "comparable device" to a tape or wire recording, and that the MODs produced by the Voice Box System "cannot be altered and are not degraded during the transfer from the computer's hard drive." Pet. App. 61. The magistrate judge also found that MODs are "duplicate originals" of the computer hard drive because they are "automatically and electron ically [created] within seconds of the calls without possi bility of alteration." Id. at 62. Accordingly, the magis trate judge concluded that the sealing of these disks satisfied Section 2518(8)(a)'s requirement that "[s]uch recordings shall be made available to the judge issuing [the order authorizing a wire intercept] and sealed un der his direction." Id. at 60. The court of appeals cor rectly affirmed that judgment.

Petitioner has not challenged the magistrate judge's factual finding, see Pet. C.A. Br. 12 n.1, but rather main tains (Pet. 16-22) that MODs cannot satisfy Section 2518(8)(a) because they are not "original" recordings. As the Seventh Circuit noted in rejecting an identical claim, "the word 'original' appears nowhere in [Section 2518(8)(a)]." United States v. McLee, 436 F.3d 751, 764 (2006). Rather, the statute only requires that any re cordings be sealed so as "to ensure the reliability and integrity of evidence obtained by means of electronic surveillance." Ojeda Rios, 495 U.S. at 263. Petitioner does not dispute that MODs constitute recordings; nor does he dispute that the MODs were sealed in accor dance with Ojeda Rios. Accordingly, his claim that the MOD recordings did not satisfy Section 2518(8)(a) war rants no further review.

b. Petitioner's contention (Pet. 15-16, 20-22) that the decision below conflicts with Ojeda Rios and numerous courts of appeals decisions also lacks merit. In Ojeda Rios, this Court articulated the requirements for the government to provide a "satisfactory explanation" for a delay in sealing, 495 U.S. at 262-267; the Court made no mention of whether a recording must be an "original" to satisfy Section 2518(8)(a). The appellate cases peti tioner cites show only that, in dealing with various claims under Section 2518(8)(a), courts sometimes use the term "original" to describe the recording placed un der seal. See, e.g., United States v. Maldonado-Rivera, 922 F.2d 934, 952 (2d Cir. 1990) (in another delayed seal ing case, court noted that "[t]he government also pre sented expert testimony that the sealed tapes were orig inals, not copies, and that they had not been edited or tampered with"), cert. denied, 501 U.S. 1233 (1991); United States v. Mora, 821 F.2d 860, 862 (1st Cir. 1987) (in case alleging untimely sealing, court noted that "[t]he original recordings were not presented for judicial sealing until June 26, 1985"). These decisions do not hold that the statute requires the sealing of "originals"; nor do they suggest that an MOD created seconds after a phone call is intercepted and recorded without possi bility of alteration cannot satisfy Section 2518(8)(a). Indeed, the only court to address whether a properly sealed MOD satisfies Section 2518(8)(a) agreed that it does. See McLee, 436 F.3d at 763-765. Because the de cision of the court of appeals conflicts with no other court of appeals decision, petitioner's claim warrants no further review.

3. Finally, petitioner challenges (Pet. 23-30) the ad mission at trial of exert testimony by DEA Agent Rob ert Murphy concerning use of drug codes in the inter cepted conversations. Petitioner maintains that Agent Murphy's testimony was impermissibly "based on sum maries prepared by a non-expert, without a literal trans lation of the Spanish," and was admitted "without re quiring [Agent Murphy] to employ any methodology in reaching his opinion." Pet. 23. Those contentions lack merit, as does petitioner's claim that the admission of Agent Murphy's testimony conflicts with decisions of other courts of appeals.

a. Petitioner challenges (Pet. 24) the adequacy of the translated English transcripts on which Agent Murphy based his testimony on grounds that the tran scripts did not contain adequate "literal translation[s] of the Spanish" words employed by the speakers. Pet. 23. That fact-bound challenge was not raised in the court of appeals, see Pet. C.A. Br. 27-28 (challenging only Agent Murphy's expertise and methodology), and accordingly is not properly presented for this Court's review. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970) ("Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them."); accord Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993).

b. Petitioner challenges Agent Murphy's qualifica tion as an expert because, "while all conversations he evaluated were in Spanish, [Agent Murphy] did not speak Spanish." Pet. 28. Although petitioner correctly notes that the intercepted conversations took place in Spanish, Agent Murphy did not base his opinions on the conversations themselves, but rather on English transla tions and summaries. Ibid. As the Seventh Circuit noted in rejecting a similar challenge to expert drug code testimony, "We can find no legal authority for the proposition that [an agent's] lack of fluency in the Span ish language should prohibit [him] from interpreting drug code language obtained from English translations of Spanish conversations. Instead, this court and other circuits have previously permitted agents to rely upon English translations to interpret drug code language." United States v. Ceballos, 302 F.3d 679, 687 (2002), cert. denied, 537 U.S. 1136 (2003). Petitioner cites no case that contradicts this reasonable conclusion; accordingly, his claim warrants no further review.

c. Petitioner's fact-bound challenge (Pet. 28-30) to whether Agent Murphy's training and methodology qualified him as an expert also lacks merit. Agent Murphy testified that he had more than ten years of experience investigating drug crimes, had received ex tensive training in narcotics and wiretap investigation techniques, had particularized experience investigating Mexico-based drug trafficking organizations, and ap plied that experience and training in reviewing the thou sands of lines of translated conversations for language patterns indicative of drug codes. Gov't. C.A. Br. 81-84. Contrary to petitioner's contention (Pet. 25-30), those qualifications and methods are entirely consistent with the qualifications and methods found adequate in the cases petitioner cites. See, e.g., United States v. Wilson, 484 F.3d 267, 276 (4th Cir. 2007) (finding expert's "gen eral method and principles in applying his experience and specialized knowledge to decipher the conspiracy's drug vernacular * * * sufficiently reliable"); United States v. Griffith, 118 F.3d 318, 323 (5th Cir. 1997) (find ing expert "qualified by knowledge and experience to interpret drug dealers' jargon" based on expert's "eight-and-one-half years as a DEA agent" and "ample opportunity to listen to drug dealers converse and to decipher the nuances of their conversations"); United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996) (find ing expert qualified to provide drug code testimony based on expert's "nearly 30 years of on-the-job experi ence" and "review[] [of] many of the wiretapped conver sations"). Because the alleged conflict between these cases and the decision at hand is illusory, petitioner's fact-specific claim does not warrant this Court's review.

CONCLUSION

With respect to the first question presented, the peti tion should be held pending the decision in Cuellar v. United States, No. 06-1456, and then disposed of in ac cordance with the Court's decision in that case. With respect to the second and third questions presented, the petition should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
ELIZABETH D. COLLERY
Attorney

NOVEMBER 2007

1 Section 1956(a)(2) makes it a crime, punishable by up to twenty years of imprisonment, to:

transport[], transmit[], or transfer[], or attempt[] to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States-

(A) with the intent to promote the carrying on of specified unlawful activity; or

(B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part-

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.

18 U.S.C. 1956(a)(2).